Smt. Shiksha Devi, Faridabad V. ITO, Faridabad

ITA 5911/DEL/2013

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5583 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 22-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 04-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YDDH
• Assessee Lawyers: D D CHAWLA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 5911/DEL/2013 ASSESSMENT YEAR: 2008-09 SMT. SHIKSHA DEVI, VS. ITO, WARD-1(6), L/H SH. CHARAN SINGH, FARIDABAD THROUGH SH. D.D. CHAWLA, H. NO. 5K/32, NIT FARIDABAD-121001 (PAN: BYYDD5672H) (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. GUNJAN JAIN, CA & SH. D.D. CHAWLA, ADV. REVENUE BY : SH. K. TIWARI, SR. DR. ORDER PER H.S. SIDHU, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 22.8.2013 OF THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)-2, FARIDABAD RELEVANT TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT THERE HAS BEEN NO VALID INITIATION OF PROCEEDINGS UNDER SECTION 148 OF THE I.T. ACT, 1961, THE ASSESSMENT MADE IS BAD IN LAW. 2 2. THAT THERE HAS BEEN NO PROPER SERVICE U/S. 148/142(1) OF THE I.T. ACT, 1961 UPON THE APPELLANT, THE ASSESSMENT MADE IS BAD IN LAW. 3. THAT THE LD. CIT(A), HAS ERRED IN NOT APPRECIATING THE CONTENTS OF VERBAL AND WRITTEN SUBMISSION MADE FROM TIME TO TIME, DURING THE COURSE OF HEARING OF APPEAL. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, SUBSTITUTE, DELETE OR MODIFY ANY OF THE GROUNDS OF APPEAL AT ANY TIME EITHER OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT AO HAS PASSED THE EXPARTE NON-SPEAKING ORDER D ATED 29.10.2010 U/S. 144 OF THE INCOME TAX ACT, DESPITE THE FACT THAT NO PROPER SERVICE OF NOTICE U/S. 148/142(1) OF THE I.T,. ACT UPON THE ASSESSEE. HE HAS REQUESTED THAT ASSESSEE IS IN POSSESSION OF ALL THE NECESSARY EVIDENCES AND CAN P RODUCE THE SAME BEFORE THE AO, IF THIS BENCH GIVE AN OPPORTUNI TY TO THE ASSESSEE FOR PRODUCING ALL THE NECESSARY DOCUMENTS BEFORE THE AO. IN THIS BEHALF HE FILED THE PAPER BOOK CONTAI NING PAGES 1 TO 127 ESPECIALLY THE EVIDENCE AVAILABLE AT PAGE NO . 30 TO 107 WHICH IS THE COPY OF THE CONVEYANCE DEED OF PURCHA SE OF PROPERTY. 3 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE AS SESSEES COUNSEL. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE HAVE ALSO GONE THROUGH THE ORDER PASSED BY TH E REVENUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. WE FIND FORCE IN THE ARGUME NTS OF THE LD. COUNSEL OF THE ASSESSEE THAT AO HAS COMPLETED T HE ASSESSMENT U/S. 144 OF THE INCOME TAX ACT, 1961 VI DE EXPARTE NON-SPEAKING ORDER DATED 29.10.2010 AND SUFFICIENT OPPORTUNITY WAS NOT AFFORDED TO THE ASSESSEE FOR SU BSTANTIATING ITS CLAIM. WE FURTHER FIND THAT BEFORE THE TRIBUNA L THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 127 I N WHICH HE HAS ATTACHED THE COPY OF ASSESSMENT ORDER UNDER SEC TION 144 OF THE I.T. ACT, 1961 DATED 29.10.2010; NOTICE DATED 9.3.2008/16.3.2009 U/S. 142(1) OF THE ACT; COPY OF REASONS RECORDED NOT DATED FOR ISSUING NOTICE UNDER SECTIO N 148 OF THE ACT; NOTICE DATED 15.3.2010 UNDER SECTION 148 OF TH E ACT WHICH WAS NOT SERVED ON THE ASSESSEE; NOTICE DATED 26.3.2 010 UNDER SECTION 148 OF THE ACT WHICH WAS NOT SERVED ON THE ASSESSEE; NOTICE DATED 29.3.2010 UNDER SECTION 148 OF THE ACT ALONGWITH ORDER UNDER 282 OF THE ACT WHICH WAS AFFIXED AT TH E PREMISES WHICH DO NOT BELONG TO THE ASSESSEE. THE SAID NOTI CE WAS 4 SERVED BY THE NOTICE SERVER ON 30/31.3.2010 AND T HE NAMES AND ADDRESS OF TWO WITNESSES ARE NOT WRITTEN ON THE NOTICE; NOTICE DATED 24.9.2010 U/S. 142(1) OF THE ACT WHICH WAS NOT SERVED ON THE ASSESSEE. DATE OF COMPLIANCE AS PER N OTICE WAS 12.10.2010; NOTICE DATED 13.10.2010 U/S. 142(1) OF THE ACT WHICH WAS NOT SERVED ON THE ASSESSEE. DATE OF COMPL IANCE AS PER NOTICE WAS 20.10.2010; NOTICE DATED 21.10.2010 UNDER SECTION 142(1) OF THE ACT WHICH WAS NOT SERVED ON T HE ASSESSEE. DATE OF COMPLIANCE AS PER NOTICE WAS 29.1 0.2010; A LETER WAS ALSO ANNEXED ALGONWITH THE NOTICE; APPEAL BEFORE THE CIT(A) WAS FILED ON 23.12.2010 WITH CONDONATION DE LAY LETTER FILED ON 21.8.2013; DEATH CERTIFICATE OF CHARAN SIN GH (HUSBAND OF SHIKSHA DEVI) WHO DIED ON 19.2.2013; COPY OF WRI TTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 27.2.2013 AND 18.3.2013 WHEREIN THE CONVEYANCE DEED OF PURCHASE OF PROPERT Y WAS FILED; THE ADDITIONAL EVIDENCE FILED BY THE ASSESS EE BEFORE THE CIT(A) WERE SENT TO THE ITO FOR REMAND REPORT ON 26 .3.2013; COPY OF REMAND REPORT SENT BY THE ITO TO THE CIT(A) DATED 2.4.2013; COPY OF THE ORDER OF CIT(A) DATED 22.8.20 13 AND THE COPY OF CONVEYANCE DEED OF PROPERTY, WHICH WERE FI LED/ AVAILABLE BEFORE THE LOWER AUTHORITIES, BUT THE SAM E WERE NOT PROPERLY CONSIDERED BY THE AO. THEREFORE, IN THE I NTEREST OF 5 JUSTICE, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE AFRESH UNDER THE LAW. THE ASSESSEE IS DIRECTED THROUGH HIS COUNSEL TO APPEAR BEFORE THE ASSESSING OFFICER ON 28.06.2018 AT 10.00 AM AND FILE ALL THE NECESSARY EVIDENCES/DOCUMENTS TO SUBSTANTIATE HER CASE AND F ULLY COOPERATE WITH THE AO IN THE PROCEEDINGS AND DID NO T TAKE ANY UNNECESSARY ADJOURNMENT. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD BY THE AO, AFTER APPRECIATING ALL THE EVIDENCES TO BE FILED B Y THE ASSESSEE AND AO SHOULD PASS A SPEAKING ORDER. SINCE THIS OR DER HAS BEEN PRONOUNCED IN THE OPEN COURT, THERE IS NO NEED TO SEND THE NOTICES. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22-05-2018. SD/- SD/- [N.K. BILLAIYA] (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22-05-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.